Hamilton v. Commissioner of Social Security

Filing 23

OPINION AND ORDER affirming the Commissioner's final decision; Clerk to enter judgment accordingly and close the file. Signed by Magistrate Judge James R. Klindt on 3/9/2018. (KAW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
THOMAS ALLEN HAMILTON,
Plaintiff,
vs.

Case No. 3:16-cv-1413-J-JRK

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
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OPINION AND ORDER1
I. Status
Thomas Allen Hamilton (“Plaintiff”) is appealing the Commissioner of the Social
Security Administration’s final decision denying his claim for disability insurance benefits
(“DIB”). Plaintiff’s alleged inability to work is a result of “Right mca stroke, left hemiparesis,
dysarthria”; “bad short term memory”; “problems with focus and concentration”; “problems
with functionality of left hand”; “pain in left hand”; “left leg is weak and unstable”; “painful
temperature sens[i]tivity in left hand”; “trouble swallowing”; and “constant sore and scratchy
throat.” Transcript of Administrative Proceedings (Doc. No. 11; “Tr.” or “administrative
transcript”), filed January 17, 2017, at 62, 72, 192. On June 10, 2013, Plaintiff filed an
application for DIB, alleging an onset disability date of February 21, 2013.2 Tr. at 162-63;

1

The parties consented to the exercise of jurisdiction by a United States Magistrate
Judge. See Notice, Consent, and Reference of a Civil Action to a Magistrate Judge (Doc. No. 12), filed
January 17, 2017; Reference Order (Doc. No. 13), entered January 18, 2017.
2

Although actually completed on June 10, 2013, the protective filing date of Plaintiff’s
application is listed elsewhere in the administrative transcript as June 7, 2013. See Tr. at 181.

see also Tr. at 28. Plaintiff’s application was denied initially, see Tr. at 62-70, 71, 103-06,
and was denied upon reconsideration, see Tr. at 72-82, 83, 112-17.
On September 1, 2015, an Administrative Law Judge (“ALJ”) held a hearing, during
which the ALJ heard testimony from Plaintiff, who was represented by either counsel or a
non-attorney representative,3 and a vocational expert (“VE”). Tr. at 22-64. The ALJ issued
a Decision on October 15, 2015, finding Plaintiff not disabled through the date of the
Decision. Tr. at 87-98. The Appeals Council then received additional evidence in the form
of a brief authored by Plaintiff’s then-representative. Tr. at 5-6; see Tr. at 258-59 (brief). On
September 12, 2016, the Appeals Council denied Plaintiff’s request for review, Tr. at 1-3,
thereby making the ALJ’s Decision the final decision of the Commissioner. On November
8, 2016, Plaintiff commenced this action under 42 U.S.C. § 405(g) by timely filing a
Complaint (Doc. No. 1), seeking judicial review of the Commissioner’s final decision.
Plaintiff makes one primary argument on appeal: “[t]he ALJ did not meet his step 5
burden because he failed to acknowledge Plaintiff’s change in age category and did not
perform the required transferable skills analysis.” Plaintiff’s Memorandum - Social Security
(Doc. No. 17; “Pl.’s Mem.”), filed March 20, 2017, at 4 (emphasis omitted). Plaintiff’s
argument focuses on the transferability of his skills and his advanced aged. See id. at 4, 511. On May 17, 2017, Defendant filed a Memorandum in Support of the Commissioner’s

3
The transcript of the hearing indicates that Plaintiff had an “attorney” whose name was
not specified, Tr. at 22, and the ALJ referred to the representative as Plaintiff’s “attorney” and “Counsel,”
Tr. at 26. Some administrative forms filed by Plaintiff’s representative indicate that the person is a “nonattorney,” Tr. at 16, 17, 110, while other forms filed by a co-representative indicate that the corepresentative is an attorney, Tr. at 160-61.

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Decision (Doc. No. 18; “Def.’s Mem.”) addressing the argument raised by Plaintiff.4 After a
thorough review of the entire record and consideration of the parties’ respective memoranda,
the undersigned determines that the Commissioner’s final decision is due to be affirmed.
II. The ALJ’s Decision
When determining whether an individual is disabled,5 an ALJ must follow the five-step
sequential inquiry set forth in the Code of Federal Regulations (“Regulations”), determining
as appropriate whether the claimant (1) is currently employed or engaging in substantial
gainful activity; (2) has a severe impairment; (3) has an impairment or combination of
impairments that meets or medically equals one listed in the Regulations; (4) can perform
past relevant work; and (5) retains the ability to perform any work in the national economy.
20 C.F.R. §§ 404.1520, 416.9206; see also Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th
Cir. 2004). The claimant bears the burden of persuasion through step four and, at step five,
the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Here, the ALJ followed the five-step sequential inquiry. See Tr. at 89-97. At step one,
the ALJ determined that Plaintiff “has not engaged in substantial gainful activity since
February 21, 2013, the alleged onset date.” Tr. at 89 (emphasis and citation omitted). At
step two, the ALJ found that Plaintiff “has the following severe impairment: late effects of

4

Although permitted, see Orders (Doc. Nos. 20, 21), Plaintiff opted not to file a reply
memorandum, see Notice (Doc. No. 22), filed June 30, 2017.
5

“Disability” is defined in the Social Security Act as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months[.]” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
6

All references to the Regulations are to the versions in effect in 2016 (the year of the
final decision) unless otherwise noted.
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cerebrovascular accident disease.” Tr. at 89 (emphasis and citation omitted). At step three,
the ALJ ascertained that “[Plaintiff] does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments in
20 CFR Part 404, Subpart P, Appendix 1.” Tr. at 90 (emphasis and citation omitted).
The ALJ determined that Plaintiff has the following residual functional capacity
(“RFC”):
[Plaintiff can] perform light work as defined in 20 CFR [§] 404.1567(b) except
he can frequently operate left hand controls with his left hand; he can frequently
perform handling, fingering, and feeling with his left upper extremity; he can
never climb ladders; he can frequently climb stairs; and he can occasionally
balance, stoop, kneel, crouch, and crawl.
Tr. at 91 (emphasis omitted). At step four, the ALJ found that Plaintiff “is unable to perform
any past relevant work” as a “[t]ruck driver, sales route” and a “supervisor route sales
delivery driver.” Tr. at 96 (some emphasis and citation omitted). At step five, the ALJ
considered Plaintiff’s age (“53 years old, which is defined as an individual closely
approaching advanced age, on the alleged disability onset date”), education (“a least a high
school education and is able to communicate in English”), work experience, and RFC, and
relied on the testimony of the VE to find Plaintiff is capable of performing work that “exist[s]
in significant numbers in the national economy.” Tr. at 96-97 (emphasis and citations
omitted). Namely, the ALJ identified representative jobs of “[g]eneral office clerk,” “routing
clerk,” and “gate keeper.” Tr. at 97 (emphasis omitted). The ALJ concluded that Plaintiff
“has not been under a disability . . . from February 21, 2013, through the date of th[e
D]ecision.” Tr. at 97 (emphasis and citation omitted).

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III. Standard of Review
This Court reviews the Commissioner’s final decision as to disability pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3). Although no deference is given to the ALJ’s conclusions
of law, findings of fact “are conclusive if . . . supported by ‘substantial evidence’ . . . .”
Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (citing Falge v. Apfel, 150 F.3d 1320,
1322 (11th Cir. 1998)). “Substantial evidence is something ‘more than a mere scintilla, but
less than a preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quoting
Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial evidence standard
is met when there is “‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Falge, 150 F.3d at 1322 (quoting Richardson v. Perales,
402 U.S. 389, 401 (1971)). It is not for this Court to reweigh the evidence; rather, the entire
record is reviewed to determine whether “the decision reached is reasonable and supported
by substantial evidence.” Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991)
(internal quotation and citations omitted); see also McRoberts v. Bowen, 841 F.2d 1077,
1080 (11th Cir. 1988); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). The decision
reached by the Commissioner must be affirmed if it is supported by substantial
evidence–even if the evidence preponderates against the Commissioner’s findings.
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004) (per curiam).
IV. Discussion
Plaintiff contends the ALJ erred at step five in relying on the VE’s testimony to find
Plaintiff is capable of performing work that exists in significant numbers in the national
economy. Pl.’s Mem. at 4-11. Plaintiff correctly points out that once an individual reaches
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fifty-five years old (the advanced age category), the Administration provides different
standards for determining whether an individual is disabled. Id. at 5-6, 9; see, e.g., 20 C.F.R.
§ 404.1568(d)(4). According to Plaintiff, because the ALJ inadvertently failed to realize that
Plaintiff had changed age categories, the ALJ failed to make appropriate inquiry of the VE
regarding transferability of skills and to address these matters in the Decision. Pl.’s Mem.
at 11. In a footnote, Plaintiff finally argues “out of an abundance of caution” that the jobs
identified by the ALJ do “not facially meet the heightened transferability standard.” Id. at 1011 n.4.
Responding, Defendant concedes that even though Plaintiff testified as to his date of
birth which undisputedly put him in the advanced age category, “the ALJ did not specifically
analyze the applicability of the Grids based on Plaintiff’s change in age category.” Def.’s
Mem. at 7. Defendant contends, however, that “[a]ny error by the ALJ . . . was harmless
because . . . the applicable Grid rule for advanced age directed a finding of ‘not disabled,’
the ALJ did not rely exclusively on the Grids to find Plaintiff not disabled, and the VE testified
that Plaintiff had transferable skills to light work and could perform other jobs.” Id. (citation
omitted). Thus, according to Defendant, the ALJ’s step five findings are supported by
substantial evidence. Id. at 5-13.
In the fifth step of the sequential evaluation process, an ALJ considers a claimant’s
RFC, together with the claimant’s “age, education, and work experience to see if [the
claimant] can make an adjustment to other work.” 20 C.F.R. § 404.1520(a)(4)(v); see also
20 C.F.R. § 416.920(a)(4)(v). As part of this consideration, an ALJ determines whether an
individual has acquired skills from prior employment and whether they are transferable. See
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20 C.F.R. §§ 404.1568, 416.968.

With respect to transferability of skills to other

employment, the applicable Regulation provides:
If you are of advanced age (age 55 or older), and you have a severe
impairment(s) that limits you to sedentary or light work, we will find that you
cannot make an adjustment to other work unless you have skills that you can
transfer to other skilled or semiskilled work . . . that you can do despite your
impairment(s). We will decide if you have transferable skills as follows. . . . If
you are of advanced age but have not attained age 60, and you have a severe
impairment(s) that limits you to no more than light work, we will apply the rules
in paragraphs (d)(1) through (d)(3) of this section to decide if you have skills
that are transferable to skilled or semiskilled light work (see § 404.1567(b)).
20 C.F.R. § 404.1568(d)(4). Paragraphs (d)(1) through (d)(3) provide:
(1) What we mean by transferable skills. We consider you to have skills that
can be used in other jobs, when the skilled or semi-skilled work activities you
did in past work can be used to meet the requirements of skilled or semi-skilled
work activities of other jobs or kinds of work. This depends largely on the
similarity of occupationally significant work activities among different jobs.
(2) How we determine skills that can be transferred to other jobs.
Transferability is most probable and meaningful among jobs in which—
(i) The same or a lesser degree of skill is required;
(ii) The same or similar tools and machines are used; and
(iii) The same or similar raw materials, products, processes, or services
are involved.
(3) Degrees of transferability. There are degrees of transferability of skills
ranging from very close similarities to remote and incidental similarities among
jobs. A complete similarity of all three factors is not necessary for
transferability. However, when skills are so specialized or have been acquired
in such an isolated vocational setting (like many jobs in mining, agriculture, or
fishing) that they are not readily usable in other industries, jobs, and work
settings, we consider that they are not transferable.
20 C.F.R. § 404.1568(d)(1)-(3).
For a person of “advanced age” (over age fifty-five) in the light work category, the
Grids provide that “[t]he presence of skills that are readily transferable to a significant range
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of semi-skilled or skilled work within an individual’s [RFC] would ordinarily warrant a finding
of not disabled regardless of the adversity of age.” 20 C.F.R. pt. 404, subpt. P, app’x 2, §
202.00(e).
“An ALJ relies on the testimony of a [VE] to determine what level of skill the claimant
achieved in his [or her] past work, whether the claimant has transferable skills, and whether
the claimant can perform other jobs.” Zimmer v. Comm'r of Soc. Sec., 211 F. App'x 819, 820
(11th Cir. 2006) (citing Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir.1999)); see also Wilson
v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002) (citing Wolfe v. Chater, 86 F.3d 1072,
1077-78 (11th Cir. 1996)) (stating that an ALJ may pose a hypothetical question to a VE as
part of the determination of whether the claimant can obtain work in the national economy).
“The VE's testimony ‘trumps’ other sources of information with regard to skill level and
alternative jobs.” Zimmer, 211 F. App’x at 819 (quoting Jones, 190 F.3d at 1229-30).
“Unless the VE is proven incorrect, the ALJ may rely on the VE's testimony.” Id. (citing
Jones, 190 F.3d at 1230).
Here, during the hearing, the ALJ was aware of Plaintiff’s date of birth because
Plaintiff specifically testified to it. Tr. at 25. When the ALJ questioned the VE, the ALJ
summarized for the VE, in detail, Plaintiff’s past relevant work and the skills Plaintiff had
acquired in performing that work. Tr. at 52-53. The ALJ asked the VE whether Plaintiff could
perform his past relevant work if he were now limited to a full range of sedentary work, and
the VE responded that he could not. Tr. at 54. The ALJ then asked the VE about the
transferability of the skills from Plaintiff’s past relevant work.

Tr. at 54.

Regarding

transferability, the ALJ first inquired as to whether Plaintiff could perform a full range of
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sedentary work with those skills, and the VE responded as follows: “No, sir. He’s acquired
skills of office; general office worker; or supervision,” jobs that “generally fall within the light
category.” Tr. at 54. The ALJ then asked, “Okay. So would there be any skills that would
be transferable to other jobs from these positions? Maintenance skills, no?” Tr. at 55. And,
the VE replied, “No, sir. Just in the light.” Tr. at 55.
The ALJ then asked the VE the hypothetical question that is adopted as the RFC in
the written Decision. Tr. at 55. The ALJ asked whether Plaintiff could perform his past work,
and the VE responded that he could not. Tr. at 55. Then, the ALJ asked whether the
hypothetical individual could perform other work that exists in the national economy. Tr. at
55. In response, the VE testified that Plaintiff could perform the jobs of “general office clerk
[which is] light, semi-skilled,” “routing clerk [which is] light, unskilled,” and gate keeper [which
is] light, semi-skilled.” Tr. at 55-56. The VE also confirmed that his testimony was consistent
with the Dictionary of Occupational Titles (“DOT”). Tr. at 56.
The ALJ in the written Decision accurately summarized the VE’s testimony regarding
the type of work Plaintiff is able to perform. Tr. at 97. Because the ALJ did not recognize
in the written Decision that Plaintiff had attained the age of fifty-five, however, the ALJ
erroneously stated that transferability of skills was “not material to the determination of
disability.” Tr. at 96 (emphasis omitted). Nevertheless, the ALJ accepted and adopted the
VE’s testimony regarding the jobs Plaintiff is capable of performing at step five. Tr. at 97.
The undersigned concludes that, overall, substantial evidence supports the ALJ’s step
five findings. As summarized in detail above, the VE was specifically asked about Plaintiff’s
transferable skills, and he testified regarding the jobs Plaintiff can perform with those skills
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and his other limitations. The ALJ was permitted to rely on that testimony in making the step
five findings, and that testimony provides substantial evidence to support the findings. See,
e.g., Zimmer, 211 F. App'x at 820 (citing Jones, 190 F.3d at 1229). The ALJ’s erroneous
statement that transferability of skills was not material was, therefore, harmless.
Plaintiff, relying on the DOT, argues that the jobs identified by the VE “cannot be used
to meet the ‘readily transferable’ standard.” See Pl.’s Mem. at 11 n.4. This argument fails,
though, because the VE’s testimony trumps other sources of information, including the DOT
on which Plaintiff relies for making this argument. See Zimmer, 211 F. App’x at 820 (citing
Jones, 190 F.3d at 1229-30). At the end of the day, complete similarity of skills is not
required; rather, as Plaintiff recognizes, “readily transferable” skills is the requirement. 20
C.F.R. § 404.1568(d)(3); 20 C.F.R. pt. 404, subpt. P, app’x 2, § 202.00(e). The VE’s
testimony, upon which the ALJ relied in making the ultimate step five findings, did not run
afoul of this requirement. See, e.g., Barchard v. Comm’r of Soc. Sec., 628 F. App’x 685, 687
(11th Cir. 2015) (finding the ALJ did not err in relying on the VE’s testimony regarding
transferability of skills acquired in past employment).7
V. Conclusion
After a thorough review of the entire record, the undersigned finds that the ALJ’s
Decision is supported by substantial evidence. Accordingly, it is
ORDERED:

7

Plaintiff accurately points out that one of the jobs that the VE testified he can perform,
routing clerk, is unskilled. Pl.’s Mem. at 10 n.4; see Tr. at 55 (VE’s testimony). According to Plaintiff, his
skills cannot transfer to unskilled work. Pl.’s Mem. at 10 n.4. Even eliminating the routing clerk job, the
others testified to by the VE provide substantial evidence to support the ALJ’s step five finding.
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1.

The Clerk of Court is directed to enter judgment pursuant to sentence four of

42 U.S.C. § 405(g), AFFIRMING the Commissioner’s final decision.
2.

The Clerk is further directed to close the file.

DONE AND ORDERED at Jacksonville, Florida on March 9, 2018.

kaw
Copies to:
Counsel of record

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